- (1.) THE writ petitioner in both the cases is one and the same. In W.P.No.22393 of 2008, the writ petitioner seeks to quash the G.O.(D) No.461 Public Works (A2) Department, dated 5.9.2008 by which the post of the petitioner as Superintending Engineer was upgraded as Special Chief Engineer and also to direct the respondent to promote the petitioner as Chief Engineer. In W.P.No.24123 of 2008, the petitioner seeks a direction against the respondent to consider the representation of the petitioner dated 12.9.2008 by which he seeks for refixation of his pay from 1998-99 onwards as Executive Engineer then as Superintending Engineer and thereafter as Chief Engineer with effect from 30.6.2006 onwards.
(2.) THE petitioner joined in the respondent Department as Assistant Engineer on 4.10.1972 and his services were regularised after he appeared in the examinations conducted by the Tamil Nadu Public Service Commission with effect from 4.10.1972. He was promoted as Assistant Executive Engineer in November, 1984. While he was working as Assistant Executive Engineer (Building) at Nagercoil in 1993, the Government has proposed to instal steam laundry equipments in 16 Government Hospitals. Out of the estimate sanctioned by the Chief Engineer viz., Rs.55,00,000/- for the said work, Rs.37 lakhs was earmarked for procurement of steam laundry equipments based on the tentative estimate prepared and the Government has also released the fund in March, 1993. It is the case of the petitioner that the Superintending Engineer, Madurai under whom he was working chose to split the machinery portion of the work into four parts casting less than Rs.10 lakhs each and called for quotations from Co-operative Societies registered under Tamil Nadu Khadi and Village Industries Board, Chennai and supply orders were given to four Co-operative Societies by the Superintending Engineer. On the basis of vigilance enquiry, investigation was ordered against the Superintending Engineer including prosecution. The Government has initiated disciplinary proceedings against the petitioner being the Assistant Executive Engineer and other Executive Engineers under Rule 17(b) of T.N.C.S. (D & A) Rules, 1976 for obeying orders of the Superintending Engineer and issuing cheques to the Co-operative Societies. The petitioner has submitted his explanation. The disciplinary proceedings were not concluded in spite of lapse of three years and in the meantime, the petitioner became eligible for promotion for the post of Executive Engineer in 1998. Due to the pendency of proceedings, the petitioner's name was overlooked and his junior was promoted. It was, three years after the issue of charge sheet, an Enquiry Officer was appointed on 18.2.1999 and to the Enquiry Officer's report which was communicated on 26.5.2000, the petitioner submitted his explanation. It was on 5.4.2002, the respondent passed orders of punishment against the petitioner of stoppage of increment for one year without cumulative effect. The review filed was rejected by the Government on 10.12.2004. The said punishment was challenged by the petitioner in W.P.No.26973 of 2007 and this Court, by order dated 18.6.2008, set aside the punishment imposed on the petitioner holding that the charges are not maintainable. Since the respondent has not restored the petitioner's original seniority in the category of Executive Engineer, for the inclusion of his name in the panel of Superintending Engineer for 2005-06, he filed W.P.No.11084 of 2006. Both the writ petitions were allowed by this Court with direction to the respondent to promote the petitioner as Superintending Engineer from the date of promotion given to his juniors and also to give subsequent promotion as Chief Engineer if found eligible. The petitioner was due to retire on superannuation on 31.10.2008. In the panel for Chief Engineer issued in G.O.(D) No.371 Public Works (A1) Department, dated 4.8.2008, the petitioner's name was not included and that was challenged in W.P.No.19240 of 2008. By order dated 8.9.2008, the respondent cancelled the punishment earlier awarded to the petitioner on 5.4.2002 and the subsequent review order issued in G.O.(D) No.758 Public Works Department dated 12.10.2004. By the impugned G.O.(D) No.461, Public Works (A2) Department dated 5.9.2008, the respondent has upgraded the post of Superintending Engineer as Special Chief Engineer. The grievance of the petitioner is that upgrading of the post of Superintending Engineer as that of Special Chief Engineer cannot be termed to be in accordance with the orders passed by this Court in writ petitions.
(3.) IN the counter affidavit filed by the respondent, the respondent has clearly stated that pursuant to the order of this Court, by resorting to original seniority, the petitioner was ordered to be entitled for notional promotion as Executive Engineer, Superintending Engineer and Chief Engineer if he is found eligible. According to the respondent, as per G.O.Ms.No.245, Public Works (A2) Department, dated 8.8.2007, a Superintending Engineer is fit for promotion as Chief Engineer in Public Works Department provided he has a minimum period of one year of left over service before retirement at the time of actual promotion. Since the petitioner was having less than one year left over service, having been promoted as Superintending Engineer on 12.3.2003, he was found not eligible for the actual promotion to the post of Chief Engineer who is the Head of Public Works Department. It is further stated by the respondent that in accordance with the contents of G.O.Ms.No.631, Public Works (A2) Department dated 23.10.1997, the petitioner was given appointment as Special Chief Engineer, Public Works Department with the same monetary benefit as that of Chief Engineer from the actual date of assumption of charge of the post. The respondent has also stated that the petitioner has not chosen to join in the post of Special Chief Engineer till his date of retirement and therefore on 31.10.2008 the petitioner retired as Superintending Engineer and there is no lapse on the part of the respondent. It is also stated that the petitioner has been actually promoted as Special Chief Engineer with the same monetary benefit as that of Chief Engineer and the petitioner was duly considered for promotion and appointed as Special Chief Engineer according to his eligibility conditions as per Special Rules. At the outset, it has to be noted that admittedly, the petitioner has not taken charge as Special Chief Engineer of the respondent Department till the date of his retirement viz., 31.10.2008 and on the said date he remained as Superintending Engineer. It is also relevant to point out that it is the specific case of the petitioner in the affidavit filed that fixation of seniority in respect of the petitioner is correct, however the order of upgradation upgrading the post of Special Chief Engineer cannot be termed as strict compliance of the orders of this Court. In this regard, it is relevant to note that in W.P.Nos.26973 of 2007 and 11084 of 2006 filed by the petitioner, while setting aside the order of punishment on the basis that the charges are not maintainable, this Court passed the following order: "In the light of the above finding of the Enquiry Officer as well as the findings given by me, I hold that the charge memo issued against the petitioner is not maintainable and the consequential punishment of withholding increment for one year without cumulative effect imposed on the petitioner by the disciplinary authority as confirmed in review, is liable to be set aside. 17. In W.P.No.11084 of 2006, petitioner has prayed to quash the order dated 13.3.2006 passed by the fist respondent declining to restore his original seniority in the category of Executive Engineer and for subsequent inclusion in the panel of Executive Engineers fit for promotion as Superintending Engineer for 2005-2006. The said order was passed by the first respondent on the basis of pendency of 17(b) charges against the petitioner as well as the order of punishment imposed on the petitioner. The said charges having been found unsustainable and the punishment order having been set aside, petitioner is entitled to succeed and therefore the impugned order in the above writ petition is also set aside. The first respondent is directed to promote the petitioner as Executive Engineer with effect from 1998-1999 notionally without monetary benefit and subsequently promote him as Superintending Engineer from the date of promotion given to his juniors as Superintending Engineer and also give subsequent promotion as Chief Engineer, if he is found eligible. Since there is delay on the part of the petitioner in challenging the order of punishment, petitioner is not entitled to get monetary benefits. Petitioner is due to retire from his service on 31.10.2008. Taking note of the said fact, the first respondent is directed to pass orders as directed above, within a period of four weeks from the date of receipt of copy of this order.";